AUSTIN Texas Attorney General Greg Abbott continued the State’s legal challenge to the Environmental Protection Agency’s (EPA) unlawful and unconstitutional efforts to regulate greenhouse gas emissions. In a brief filed on behalf of nine states, Attorney General Abbott challenged the EPA’s Timing and Tailoring rules, which are two in a series of rules that improperly attempt to regulate greenhouse gas emissions under the federal Clean Air Act. As the states’ brief explains, both rules violate federal law and should be struck down by the U.S. Court of Appeals for the District of Columbia Circuit.

The states are challenging the EPA’s decision to ignore the Clean Air Act’s unambiguous language in order to advance its greenhouse gas regulatory regime. Under the Clean Air Act, a stationary source - such as a factory or foundry - that has the capacity to emit more than 250 tons of a regulated substance must undergo arduous federal permitting requirements. From an emissions perspective, the statutory thresholds are relatively low because the Clean Air Act was intended to regulate toxic substances which are directly harmful to human beings’ health and safety.

Unlike the toxic substances regulated by the Clean Air Act, greenhouse gas emissions - which include the carbon dioxide that all humans exhale when they breathe - are not directly harmful to people. If the thresholds established by the Act were applied to greenhouse gas emissions, common boilers found in hospitals, schools and large buildings across the country would require federally approved environmental permits. But rather than recognize that the Clean Air Act was not created to regulate greenhouse gas emissions, the EPA is attempting to advance its greenhouse gas regulatory regime by violating the unambiguous text of the Clean Air Act and unilaterally raising emission thresholds.

While the Clean Air Act provides that any stationary source with the capacity to emit more than 250 tons per year must be subjected to its arduous permitting process, the EPA’s Tailoring Rule simply ignores the permitting thresholds established by the Act and replaces them with criteria of EPA’s own making. Specifically, the Tailoring Rule declares that the EPA will only regulate greenhouse gas emissions from sources that emit more than 75,000 tons per year. As a result, the EPA is arguing that it can disregard a federal statute and unilaterally impose a greenhouse gas regulatory regime that violates federal law.

Despite the fact that the Clean Air Act was not designed to regulate greenhouse gas emissions, the EPA’s Timing Rule incorrectly claims that the agency must regulate these emissions from stationary sources once it also regulates them from mobile sources, like motor vehicles. The states explain that the EPA is clearly misapplying federal law and violating the Clean Air Act in order to advance the Administration’s desire to unilaterally regulate greenhouse gas emissions. Further, the states argue that the Administration is moving forward with its unlawful regulations despite the EPA’s acknowledgement that the rules would produce absurd results and regulatory gridlock.

In its zeal to unilaterally impose its greenhouse gas regulations, the EPA misinterpreted the Clean Air Act in a way that allows the agency to regulate homes, schools and churches. As the states’ brief explains, Congress could not have vested the EPA with authority to bring greenhouse gases within [its] ambit because the Clean Air Act does not allow for rational greenhouse-gas regulation.

Rather than reasonably concluding that Congress could not have intended for the Clean Air Act to be used to regulate greenhouse gases, the EPA relied upon the Tailoring Rule to unilaterally and unlawfully alter unambiguous statutory emissions thresholds required by the Clean Air Act - which only Congress has the constitutional authority to amend. The State’s brief reminds the Administration that the U.S. is a nation of laws and that [f]ederal statutes are not just helpful suggestions to agencies. Further, the States argue that the Tailoring Rule is an unconstitutional usurpation of legislative power.

The State of Texas’ legal action against the EPA reflects the latest in an ongoing effort by Texas and other states to oppose the EPA’s unprecedented and unlawful attempt to regulate greenhouse gases under the Clean Air Act. In December 2009, the EPA finalized an Endangerment Finding concluding that greenhouse gases pose a danger to human welfare. The Endangerment Finding was the first rule in a series of rules including the Timing, Tailpipe and Tailoring Rules issued by the EPA that coerce states into enacting their own greenhouse gas regulations. In addition to being illegal, these regulations threaten to destroy American jobs and derail the nation’s economic recovery by imposing burdensome and unnecessary new costs on countless employers in every sector of the economy. Texas is currently challenging all six of the EPA’s unlawful greenhouse gas regulations in federal court.